For the Defense - Vol. 7, Issue 2 - 22

Specifically, saying '[it is] better to leave unredressed the
wrongs done by dishonest officers than to subject those who
try to do their duty to the constant dread of retaliation.' " 5
Simply put, the United States Supreme Court made a
specific carve-out rule for prosecutors pertaining to their
conduct while conducting their prosecutorial duties,
because for a prosecutor to execute their duties properly,
they were entitled to full immunity from suits, regardless of
the egregiousness of the intentional wrongful conduct. Such
conduct includes falsifying evidence, coercing witnesses,
soliciting and knowingly sponsoring perjured testimony,
and withholding exculpatory evidence.6
Therefore, this
article explores what is considered exculpatory evidence, the
American Bar Association ( " ABA " ) model rules concerning
a prosecutor's duty to disclose exculpatory information, the
Pennsylvania Rules of Professional Conduct governing the
responsibilities of a prosecutor, cases involving prosecutorial
misconduct in Pennsylvania, and a failed opportunity to
mitigate prosecutorial misconduct in Pennsylvania.
Exculpatory Evidence Defined
The United States Supreme Court in Brady v. Maryland
recognized a defendant's right to discovery.7
is
exculpatory
if
it
tends
to
There the
Court held that defendants are entitled to " material " and
" exculpatory " evidence in possession of the government.8
Evidence
decrease
probability of guilt or the severity of punishment.9
the
Evidence
is material if there is " a reasonable probability " that the
disclosure would have led the proceeding to a different
result.10
Although the Brady holding was a step in the right
direction by the United States Supreme Court, it failed to
require the disclosure of inculpatory evidence.11
The Pennsylvania Supreme Court provided greater
guidance on interpreting Brady when it held that in order
to establish a Brady violation, the defendant must show
that: (1) evidence was suppressed by the state, either
willfully or inadvertently; (2) the evidence was favorable
to the defendant, either because it was exculpatory or
because it could have been used for impeachment; and (3)
the evidence was material, in that its omission resulted in
prejudice to the defendant.12
However, the mere possibility
that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial,
does not establish materiality in the constitutional sense.13
Rather evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.14
In Commonwealth v. Moose,15
the Pennsylvania Supreme
Court discussed in detail the holding in Brady and its
progeny. Materiality is determined by different standards
depending upon whether trial counsel made a specific or
a general request for exculpatory evidence. For instance,
where the defense gives the prosecution notice of exactly
what the defense desires, the test of materiality is whether
22 For The Defense l Vol. 7, Issue 2
the evidence might have affected the outcome of the
trial. Where a general, as opposed to specific, request for
exculpatory evidence is made, the evidence is material if the
omitted evidence creates a reasonable doubt that did not
otherwise exist.16
ABA Model Rules Concerning a Prosecutor's Duty to
Disclose Exculpatory Information
At present, the most comprehensive criminal justice
standard for prosecutorial conduct can be found in the
American Bar Association ( " ABA " ),17
serving only as a nonenforceable
guide regarding prosecutorial conduct.
ABA standards 3-1.2, 3-5.4, and 3-5.6 expand on a
expands on the Function
prosecutor's responsibilities concerning exculpatory
evidence. ABA Standard 3-1.2,18
and Duties of the Prosecutor, providing that, first, the
prosecutor is an administrator of justice, a zealous advocate,
and an officer of the court. The prosecutor's office should
exercise sound discretion and independent judgment in
the performance of the prosecutorial function. Second, the
primary duty of the prosecutor is to seek justice within the
bounds of the law, not merely to convict. The prosecutor
serves the public interest and should act with integrity
and balanced judgment to increase public safety both
by pursuing appropriate criminal charges of appropriate
severity and by exercising discretion to not pursue criminal
charges in appropriate circumstances. The prosecutor
should seek to protect the innocent and convict the guilty,
consider the interests of victims and witnesses, and respect
the constitutional and legal rights of all persons, including
suspects and defendants.
Standard 3-5.6(a)19 provides that after charges are filed,
if not before, the prosecutor should diligently seek to
identify all information in the possession of the prosecution
or its agents that tends to negate the guilt of the accused,
mitigate the offense charged, impeach the government's
witnesses or evidence, or reduce the likely punishment of
the accused if convicted.
Standard 3-5.6(b)20 provides that before entering into a
disposition agreement, the prosecutor should disclose to the
defense a factual basis sufficient to support the charges in
the proposed agreement, and information currently known
to the prosecution that tends to negate guilt, mitigate the
offense or is likely to reduce the punishment.
Lastly, Standard 3-5.4 (c)21 provides that before the trial of
a criminal case, a prosecutor should make timely disclosure
to the defense of information described in (a) above that
is known to the prosecutor, regardless of whether the
prosecutor believes it is likely to change the result of the
proceeding unless relieved of this responsibility by the court's
protective order. A prosecutor should not intentionally
attempt to obscure information disclosed pursuant to this
standard by including it without identification within a
larger volume of materials.
For the Defense - Vol. 7, Issue 2

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